The Swamp Stomp
Volume 16, Issue 16
MISSOULA – On April 7, 2016 a federal Montana jury found Mr. Joseph David Robertson, 77, guilty on two counts of unauthorized discharge of pollutants into waters of the United States and one count of injury or depredation of United States property. He now faces up to 15 years in prison and a $250,000 fine. The sentencing phase is pending. Mr. Robertson was indicted by a grand jury in May of 2015 as a result of illegal ponds he built on two parcels of land near Basin, Montana, one on Beaverhead-Deerlodge National Forest land and the other on adjacent private property. The ponds resulted in the discharge of dredged and fill material into a tributary stream and adjacent wetlands and caused widespread damage to both properties.
At trial, the government introduced evidence that in October of 2013, a United States Forest Service (USFS) Special Agent visited the National Forest property to determine whether Mr. Robertson had complied with previously issued conditions of probation for misdemeanor violations of USFS regulations. The Agent testified at trial that during the site visit, she observed multiple ponds dug into an existing stream on both USFS and adjacent private property.
Mr. Robertson lives on the White Pine Lode patented mining claim that he owns. In 2013 and 2014, he dug ponds that discharged dredged and fill materials into an adjacent tributary of Cataract Creek and into nearby wetlands. A U.S. Forest Service agent discovered the ponds when she went to the property to see whether Mr. Robertson had complied with a judge’s previous order to remove structures he had built on federal lands without permission.
Mr. Robertson dug the ponds to protect his property from fire and to water his horses, his federal public defender said in court filings. Mr. Robertson acknowledged at the time that he didn’t have a permit to do the work, but he said a Montana Fish, Wildlife and Parks official had given him permission to dig.
Cataract Creek flows into the Boulder River, which empties into the Jefferson River. The U.S. Army Corps of Engineers sent Robertson a notice in 2014 that he was discharging pollutants without a permit, but Mr. Robertson’s wife threw the certified mail notice into the trash at the post office, federal prosecutors said.
The U.S. Attorney’s Office filed a criminal indictment against Mr. Robertson in May 2015, charging him with unauthorized discharge of pollutants into U.S. waters and malicious mischief for injuring the property of the United States. Government officials estimated it will cost nearly $70,000 to repair the damage, and that the value of the wetlands lost in the 1.2-acre area is estimated between $25,000 and $40,000 per acre.
During a subsequent site visit in November of 2013, Mr. Robertson admitted to Environmental Protection Agency (EPA) and USFS Criminal Special Agents that he had performed the work on the National Forest property using an excavator. State and federal officials visited the site again in May of 2014, and observed that Mr. Robertson had done additional work. The site was now approximately 1.2 acres in size, and extended beyond the National Forest property to a private property that he did not own. The work consisted of nine ponds of varying sizes, including some as large as approximately 4900 square feet that were placed directly in the stream and wetlands area. Unconsolidated dredged material from the ponds had been used to create the berms and had been placed in and around the stream and wetlands. Mr. Robertson admitted that he had completed the additional work. Additional investigation revealed that Mr. Robertson continued to construct ponds on the USFS property after May of 2014, despite being told repeatedly that he had no legal right to do so.
One of the central legal issues at trial was whether the waters polluted by Mr. Robertson were “waters of the United States” for purposes of the Clean Water Act. The United States introduced evidence and expert testimony from the Army Corps of Engineers and the EPA that the stream and wetlands had a significant nexus to traditional navigable waters, and therefore were “waters of the United States.” Fishery biologists from the Montana Fish, Wildlife and Parks (FWP) and the USFS testified that this headwater and wetland complex provided critical support to trout in downstream rivers and fisheries, including the Boulder and Jefferson Rivers.
“This verdict sends a message that the United States will not stand by and allow streams and wetlands of the United States to be polluted, or National Forest lands to be injured,” said United States Attorney for the District of Montana Mike Cotter. “Clean and healthy waterways are a critical resource for all forms of life and are a Montana value. It is imperative that we protect this increasingly scarce resource. The collaborative efforts of multiple state and federal agencies in cases like this help ensure that individuals who seek to degrade it will be held accountable.”
“Rivers, streams and wetlands provide essential habitat for fish and wildlife which must be protected, and EPA and its law enforcement partners are committed to protecting these invaluable natural assets as well as the communities around them,” said Jeffrey Martinez, Special Agent in Charge of EPA’s criminal enforcement program in Montana. “The defendant’s illegal activity took place not only on public land but also on private property he didn’t own. Today’s guilty verdict demonstrates that polluters will be held accountable for their actions.”
The case was prosecuted by Assistant U.S. Attorney Bryan Whittaker and Special Assistant U.S. Attorney Eric Nelson from the United States Environmental Protection Agency. This case was investigated by multiple state and federal agencies including the United States Forest Service, the Environmental Protection Agency Criminal Investigation Division, the Army Corps of Engineers, and the Jefferson County Sheriff’s Office. Other agencies that assisted the investigation included Montana Fish, Wildlife and Parks and the Jefferson Valley Conservation District.